855 F.

2d 1528
26 Fed. R. Evid. Serv. 1473

UNITED STATES of America, Plaintiff-Appellee,

v.
John W. DUNCAN, Defendant-Appellant.
No. 87-8148.

United States Court of Appeals,

Eleventh Circuit.
Sept. 29, 1988.

James W. Ellison (Court-appointed), Burnside, Wall & Daniel, Augusta,

Ga., for defendant-appellant.
J. Michael Faulkner, Asst. U.S. Atty., Augusta, Ga., Shelley A. Longmuir,
Dept. of Justice, Criminal Div., Washington, D.C., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of
Georgia.
Before JOHNSON and HATCHETT, Circuit Judges, and ESCHBACH* ,
Senior Circuit Judge.
ESCHBACH, Senior Circuit Judge:

The defendant appeals a jury verdict which found him guilty of kidnapping (18
U.S.C. Sec. 1201) and interstate transportation of a stolen motor vehicle (18
U.S.C. Sec. 2312). The trial judge denied his request for a judgment of acquittal
and his alternative motion for a new trial. The defendant was then sentenced to
consecutive terms of twenty-five years imprisonment for kidnapping and five
years for the Sec. 2312 violation. On appeal, the defendant asserts several
alleged trial errors. We will affirm the conviction.

* In the district court trial, a jury convicted John W. Duncan with abducting
nineteen-year-old Elizabeth Whitmire from the parking lot of Wallace
Thompson Hospital in Union, South Carolina. Whitmire, a part-time employee

of the hospital, was scheduled to work a shift beginning at 10:00 p.m. on the
night of September 30, 1986. Shortly before her shift began, Whitmire parked
her car in front of the hospital. After she got out of the car, she reached back
into it to get some money. The defendant allegedly sneaked up behind her,
grabbed her at knife point, and forced her back into the car. As he was driving
her away from the hospital, the defendant allegedly told Whitmire that he was
heading to Dallas, Texas, in order to kill his ex-wife. The defendant drove
Whitmire to a wooded area close to Union where he allegedly raped her twice.
They then continued driving, only stopping once to buy gasoline, beer and soda
at a Fast Fair convenience store in Laurens, South Carolina.
3

The defendant allegedly ordered Whitmire to drive from the store, and forced
her to drink the beer, whereupon she became ill and vomited. The defendant
then took over the wheel. At that point, he told Whitmire that he was in search
of his ex-wife's landlady, who lived in McCormick, South Carolina. However,
the defendant became confused in his directions and inadvertently drove the car
west into Georgia. Because of the defendant's erratic driving pattern, a Georgia
police officer tried to chase the car but was not able to overtake it. Shortly
thereafter, Whitmire noticed a sign which indicated that they were headed in
the opposite direction from McCormick. The defendant turned the car around,
and was subsequently caught by a Georgia police officer in Lincolnton,
Georgia. The officer ordered the defendant out of the car while Whitmire
stayed inside. At the officer's instigation, Whitmire got out of the car to give
the police officer her driver's license. When the officer asked to see her
registration papers, Whitmire went back to the car, handed the officer the
papers, and grabbed his arm. When she was safely behind the officer, she told
him that she had been kidnapped and raped. The defendant then tried to flee,
but was apprehended.

The defendant claims four bases for the reversal of his convictions. First, he
claims that the district court erred when it instructed the jury that all of the
essential elements that constitute kidnapping need not be established in order to
find guilt. Second, he contends that the district court erred when it ruled on his
motion in limine to exclude any testimony or indirect evidence pertaining to the
victim's virginity. Third, the defendant argues that the evidence was
insufficient to convict him because the evidence did not show beyond a
reasonable doubt that he intended to transport the victim in interstate
commerce. Finally, he claims that the trial judge erred when he informed the
jury that the trial was being transcribed. This information, according to the
defendant, reminded the jury that its judgment could be reviewed, and thus
made it more likely that the jury would render an erroneous verdict. We reject
these contentions and affirm the conviction and sentence.

II
5

The defendant alleges that the trial court erred in its closing remarks to the jury
by instructing them that they could find the defendant guilty of the kidnapping
without a showing of all the essential elements of Sec. 1201.1 According to the
trial transcript, the trial judge instructed the jury:

6
Guilt
my be established, without a showing that the accused did everything
constituting the offense charged and acted willfully and he done [sic] it voluntarily,
intensionally [sic] with the specific intent to do something that the law forbids. That
is to say with a bad purpose to either disobey or disregard the law.
7

R8-386 (emphasis added). The defendant contends that this jury instruction
constitutes reversible error on the kidnapping conviction.

Because at the time that this instruction was given the defendant failed to object
to the charge, we will overturn the conviction only for plain error that affects
substantial rights. See Fed.R.Crim.P. 52(b); United States v. Brown, 616 F.2d
844 (5th Cir.1980). If the trial judge did indeed inform the jury that all of the
essential elements of the Sec. 1201 kidnapping offense need not be proven
beyond a reasonable doubt in order to convict, it would be reversible error, see
Brown v. United States, 277 F.2d 573, 576 (5th Cir.1960), unless the
Government proved that the error was harmless beyond a reasonable doubt. See
Vaccaro v. United States, 461 F.2d 626 (5th Cir.1972).

The Government requested a "certificate of error" regarding this aspect of the

record on appeal, asking the trial judge to make certain findings with regard to
the contested jury instruction. In response, the trial court held a post-trial
supplemental hearing. At this hearing, the Court Reporter who transcribed the
trial testified that a new computer system was purchased after the trial, but that
it was used to transcribe the record. Supp.R. 35. During the trial itself, the
Court Reporter had used a regular stenotype machine to transcribe the trial onto
a stenotape. The Court Reporter then used the stenotape to transcribe the trial
into the new computer system. The Court Reporter further testified that the
transcript was unexpectedly lengthy and that he got "pushed toward the end"
for time. Supp.R. 38. As a result, the first draft of the transcript was filed
without being proofread. Supp.R. 38. The Court Reporter subsequently
destroyed the stenotape. Supp.R. 35.

10

Other possible errors in the computer transcription were brought out during the
hearing. A "dictionary" is programmed into the computer containing shorthand

phonetic abbreviations for various words. When such an abbreviation is typed

into the machine during the trial, the computer "knows" what the full word
actually is. However, at the time that this trial was transcribed, the entire
dictionary had not yet been developed and was only partially programmed with
abbreviations. As a result, errors could easily have resulted if there was a typo
in an abbreviation, or a conflict in coding. Moreover, the original stenotape
used was stored in folds which the Court Reporter had to flip over in order to
type into the computer. An error in transcription could have resulted if the
Court Reporter flipped over one fold inadvertently.
11

During the supplemental hearing, the trial judge noted that the challenged
section of the jury instructions was grammatically incorrect, incoherent and
uncharacteristic of him. The charge appears to begin with an aiding and
abetting theory, and seems to conclude with specific intent or willfulness.
Supp.R. 12. The trial judge noted that although he did not enter his entire
charge to the jury in his handwritten notes, he remembered that he relied on the
Former Fifth Circuit pattern instructions and a treatise by Devitt & Blackmar.
Supp.R. 13.

12

Considering all of the evidence before him, the trial judge concluded that the
transcript did not reflect the jury charge as he actually gave it. He certified that,
according to his best recollection, the jury instruction that he actually gave was
as follows:

13

Guilt may be established without a showing that the accused did everything
constituting the offense charged, because the law recognizes that, ordinarily,
anything a person can do for himself can be done by directing the acts of
another person. So if the acts or conduct of another person are willfully
directed or procured by the defendant, the law holds the defendant responsible
for the acts and conduct of the other person, just as though he had committed
the act or engaged in such conduct himself.

14

However, it must be shown that the defendant acted willfully; that is, that he
did it voluntarily, intentionally, and with the specific intent to do something that
the law forbids; that is to say with a bad purpose either to disobey to to
disregard the law.

15

Supp.R. 17-18.

16

After reviewing all of the evidence provided at the hearing, the trial judge
concluded that his jury charge had been improperly transcribed. Our analysis

leads us to agree with the trial judge that there was an error in the transcription,
and not with the charge itself.
17

However, even if the trial judge did make the charge as it was transcribed in
the record, we need not reverse the conviction. The primary issue in
determining a claim of plain error related to jury instructions is " 'whether this
contested part of the charge is so erroneous that when considered in the totality
of the charge as a whole and the evidence presented against each appellant, the
error is so great as to result in the likelihood of a miscarriage of justice.' "
United States v. Franklin, 586 F.2d 560, 569 (5th Cir.1978) (quoting United
States v. Smith, 502 F.2d 1250, 1256 (5th Cir.1974)), cert. denied sub. nom.
Bonamo v. United States, 440 U.S. 972, 99 S.Ct. 1536, 59 L.Ed.2d 789 (1979).
We must determine whether the potential harm caused by the jury charge has
been neutralized by the other instructions given at the trial such that reasonable
jurors would not have been misled by the error. See, e.g., Lamb v. Jernigan, 683
F.2d 1332, 1340-41 (11th Cir.1982), cert. denied, 460 U.S. 1024, 103 S.Ct.
1276, 75 L.Ed.2d 496 (1983). As the Supreme Court stated in Cupp v.
Naughten, 414 U.S. 141, 94 S.Ct. 396, 36 L.Ed.2d 368 (1973), "the question is
not whether the trial court failed to isolate and cure a particular ailing
instruction, but rather whether the ailing instruction by itself so infected the
entire trial that the resulting conviction violates due process." Id. at 147, 94
S.Ct. at 400. Our review of the record indicates that the trial judge's
instructions to the jury both at the early portion of the trial, and immediately
preceding the challenged remarks, neutralized any potential harm.

18

In his instructions to the jury at the beginning of the trial, the trial judge
emphasized to the jury that all of the essential elements to the kidnapping
charge had to be proven. Specifically, he informed them:

19
There
are three essential elements, that is three basic things that must be proven by
the Government in any kidnapping case. These, of course, must be proven beyond a
reasonable doubt and each of them must be proven. First that the Defendant knowing
and willfully seized, confined [sic] inveigled and kidnapped the person described in
the indictment as charged. Second, that the defendant held such person for ransom
or reward or other benefit which the Defendant intended to derive from that
kidnapping and that such person was thereafter transported in interstate commerce.
20

R 7-42 and 7-43 (emphasis added).

21

Immediately prior to the challenged instruction, the trial judge reiterated this
earlier instruction.2 He told the jury:

22
[T]here
are two essential elements that are required to be proven in order to establish
this offense charged in count of the indictment [sic] first the act or acts of
transporting or causing the transportation of a person in interstate commerce as
charged in the indictment and second doing such an act or acts knowingly and
willfully and while such person was unlawfully seized, confined, inveigled,
kidnapped or carried away and held for ransom, reward or otherwise, as charged.
23

R 8-385 (emphasis added).

24

From our review of the record from the supplemental hearing and the trial
itself, we conclude that the trial court did not commit reversible error with
regard to the challenged jury instruction. The testimony introduced at the
supplemental hearing indicated that the possibility of error in transcription was
great, so that the challenged jury charge in the transcript probably resulted from
a transcription error rather than an error in the actual charge given. The trial
judge has concluded and certified that the transcribed jury instruction does not
reflect the charge as he actually gave it. However, we need not rely on the trial
judge's conclusions alone to conclude that no reversible error was made.
Because the jury was instructed by the trial judge both at the beginning of the
trial and in his final closing instructions that all of the essential elements of Sec.
1201 had to be proven, the defendant was not prejudiced by the asserted error in
the jury charge. Any such error would be harmless in the context of this case.

III
25

Prior to the trial, the defendant filed a motion in limine to exclude any
testimony or indirect evidence regarding the victim's virginity prior to the
alleged rape. The trial judge considered the motion after the jury was selected,
but out of the presence of the jury, and ruled:

26
[U]ntil
or unless specifically authorized there will be no mention by counsel in the
presence of the jury of her virginity.... I am not going to give the witness any
instructions and I am going to tell the lawyers that they must not give her any
instructions to volunteer this information or inject it in anyway [sic] into the
proceeding. I am simply going to restrict the Government until or unless I
specifically authorize it, that this question about her prior virginal condition may not
be propounded, but I am not going to restrain her, in some artificially created way,
from telling her version of the story and from telling what she says to be the truth
and the whole truth and if it includes such information then that is necessarily before
the jury.
27

R 6-21, R 6-22 (emphasis added).

28

The defendant contends that the district court abused its discretion by not
excluding all references to the rape, and by failing to restrain the victim from
mentioning her prior virginity. He claims that the admission of the evidence
was highly prejudicial and irrelevant. During her direct examination, the victim
testified that the defendant could not believe that she had been a virgin. She
testified: "He thought I was special because I was and he was in love with me."
R7-91. She also testified that the rape had been painful and had caused her to
bleed. R7-88 to 90. While Fed.R.Evid. 4123 has traditionally been applied to
restrict introduction of evidence regarding a victim's unchastity, the defendant
contends that Rule 412 should also bar introduction of evidence pertaining to a
victim's chastity.

29

Fed.R.Evid. 412 was enacted in 1978 to encourage rape victims to report such
crimes by eliminating the fear that irrelevant information about a victim's prior
sexual behavior would be used to humiliate and embarass the victim. Thus,
Rule 412 has been used to exclude evidence which pertained to the unchastity
of the victim. See, e.g., United States v. One Feather, 702 F.2d 736 (8th
Cir.1983); Moore v. Duckworth, 687 F.2d 1063 (7th Cir.1982); United States v.
Nez, 661 F.2d 1203 (10th Cir.1981) (per curiam). Rule 412 was premised on
the precept that an accused does not have a constitutional right to present
irrelevant evidence, and "reputation and opinion concerning a victim's past
sexual behavior are not relevant indicators of the likelihood of her consent to a
specific sexual act or of her veracity." Doe v. United States, 666 F.2d 43, 47
(4th Cir.1981). However, this Circuit has not yet dealt with the question of
whether evidence of a victim's chastity should be admissible under Rule 412.

30

The defendant relies on the decision in Government of the Virgin Islands v.

Jacobs, 634 F.Supp. 933 (D.V.I.1986), to argue that evidence of a victim's
chastity should be accorded the same treatment under Rule 412 as evidence of
her unchastity. In Jacobs, the district court was concerned that evidence of the
victim's chastity would unduly prejudice the jury against the defendant who
was charged with rape. However, in the case before us, the defendant is not
charged with rape, but with kidnapping. The analysis in Jacobs indicates that
prejudice against the defendant regarding the rape charge was the concern. In
the context of this case, the rape evidence was used to refute the defendant's
claims that the victim had several opportunities to escape, and that her failure to
do so indicates her consent. Since consent is a complete defense to a charge of
kidnapping, see United States v. Chancey, 715 F.2d 543, 546 (11th Cir.1983),
the victim testified that her prior virginity explains her shock and inability to act
aggressively to escape. While a defendant may be able to show prejudice from
such evidence when he is charged with rape, in the context of this case, it is
difficult to determine the prejudicial impact on the kidnapping charge where

the rape itself is not at issue.

31

During the trial, the defense attorney noted that the victim may have had
several opportunities to escape. In his brief, the defendant stated that there was
no evidence that the victim had been bruised or struck, and that the defendant
even handed the victim his knife, which she then placed in the glove
compartment without turning it against the defendant. The defendant also
argues that the victim did not try to escape from him at the Fast Fair
convenience store, and that the sales clerk there thought that they could have
been a courting couple.4 Jacobs is premised on the notion that once an accused
has been charged with a crime, he has the right to confront his accusers, even if
that means a chance to cross-examine and impeach a rape victim's testimony on
relevant and probative prior sexual acts. 634 F.Supp. at 938. In this case, the
defendant is claiming that the victim acquiesced to the kidnapping. Her
testimony of her prior virginity explains why she did not run away, and serves
to refute this allegation. We find that in the context of this kidnapping case, the
evidence was more probative than prejudicial.

32

The victim's testimony regarding the pain that she endured in the rape refutes
the defendant's contention that she was not bruised in any way. Although this
evidence is admittedly less probative on the question of consent than evidence
of her chastity, because the defendant is not being tried for rape here, we find
the evidence more probative than prejudicial.

33

The defendant also argues that his alleged comments of affection for the victim
because she was a virgin do not provide evidence of why the defendant
allegedly chose to abduct her. He argues that he allegedly made the comments
after the rape, so that her chastity cannot be used to provide a motive for the
kidnapping. However, the Government contends that it explains the defendant's
actions after the rape and his refusal to let her go free at that point. As the
Government correctly points out, under Sec. 1201, almost any purpose satisfies
the Sec. 1201 requirement of kidnapping for a benefit. Thus, the rape itself
could be introduced as evidence of motivation. See United States v. McBryar,
553 F.2d 433, 434 (5th Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 191, 54
L.Ed.2d 136 (1977).

34

We note that throughout the course of the trial, the district court judge
attempted to limit the use of the rape evidence in the prosecution of the
kidnapping charge. He noted to the jury that the defendant was not being
prosecuted for rape, but for kidnapping. R 7-44. The trial judge also gave
several instructions to the attorneys, when the jury had retired from the
courtroom, to limit the use of the rape evidence to the consent issue. Early in

the trial, he informed the attorneys: "This case in my opinion can not [sic] be
tried correctly or effectively without the mention of the rape. Nevertheless, this
case should not be tried as one dedicated to the exploration of the rape. This is a
kidnapping case, obviously the rape will be in evidence and some of the
sequela of the rape will be in evidence." R6-20. At another juncture of the trial,
he reiterated to the attorneys: "I see it [this case] as a matter in which the
element of consent or lack of consent is overlapping, both the crime alleged,
that is kidnapping and the crime of rape which is an element of the kidnapping
charge." R 7-28 and 7-29. He further stated that: "The kidnap includes that rape
and the kidnap and rape both include consent.... When the element of consent is
brought into this case then it would be error, I believe, to proceed without the
admission for the juries [sic] consideration of the details which bear upon the
element of consent." R 7-29.
35

In essence, the trial judge would not permit the introduction of rape evidence
unless it was used to refute the allegations of consent by the defendant. The
attorneys were not allowed to raise the issue of the victim's virginity. The
victim herself was the only one who was allowed to refer to it. R 6-21 and 6-22.
The trial judge instructed the attorneys: "I can not [sic] in good conscience and
in the exercise of common sense tell a young woman who, if she is telling the
truth, holds her virginity as something much to be desired and therefore
lamentably lost that she is tongue tied and can not [sic] mention such a factor, if
it is relevant to the inquiry." R 6-20, R 6-21.

36

We note that the evidence of the victim's virginity, which the defendant
challenges, came out early during the trial, when the victim was under direct
examination as a witness called by the Government. Responding to the
Government's line of questioning, the victim gave a chronological accounting
of the events that transpired during the night of her alleged abduction. The
pertinent testimony occurred when she was describing what happened after the
first alleged rape. She first indicated that she had dressed herself in the
backseat. R 7-90. The Government then asked her if she had experienced any
pain or bleeding. Id. The victim indicated that she noticed that she was
bleeding. Id. The Government then asked her if this bleeding was due to her
monthly period, to which she responded that she had just finished her period a
few days previously. Id. At this point, the Government asked Whitmire if there
was any conversation after she had put her clothes back on. She responded:
"Yes, he couldn't believe I was a virgin. He thought I was special because I was
and he was in love with me." R 7-91. The transcript indicates that at no point
throughout the Government's direct examination of the victim regarding the
first rape did the defense attorney object to the admission of any of this
testimony. Moreover, the trial judge did not make any comments throughout

this entire testimony which would indicate that his ruling on the motion in
limine had been violated. We note that since the trial judge presided over the
entire trial and heard all of the testimony presented, he was in the best position
to determine if his ruling had been violated.
37

Our review of the transcript does not indicate that the Government violated the
trial court's ruling on the motion in limine. The Government questioned
Whitmire in order to get an accurate accounting of the alleged kidnapping. The
victim's response, which revealed her chastity, simply stated the truthful text of
the conversation. Her response was relevant to a faithful account of what
transpired and was not proffered merely to indicate her chastity. In his ruling on
the motion, the trial judge clearly chose not to "tie the victim's hands" if she
voluntarily offered relevant and probative testimony about her chastity. Her
testimony did not violate the judge's ruling. Although the Government's
questions regarding the pain that the victim experienced during the rape may be
slightly less probative, we note that at no time during the Government's pursuit
of this line of questioning did the defense attorney object, nor did the trial judge
indicate in any way that his ruling on the motion in limine had been violated.

38

Shortly after this testimony, the Government continued to ask the victim about
the remaining events of that same evening. The victim testified that the
defendant raped her a second time. The Government again asked the victim if
any conversation ensued, to which she replied: "He kept telling me that he
loved me and he asked me if I wanted to run away with him and get married."
R 7-94, 7-95. Again, the defense attorney did not object to admission of this
testimony, nor does he contest this particular segment of Whitmire's testimony
on appeal. We highlight this portion of the trial because it shows that the
victim's testimony regarding her conversations with the defendant after the
rapes may provide at least a partial insight into the defendant's motivation for
raping her a second time, and continuing the abduction. The motivation of rape
is admissible to show that the defendant kidnapped for a benefit, a required
element of a Sec. 1201 offense. See McBryar, 553 F.2d at 434.

39

Later during the trial and after all of this testimony had been given, the district
court judge again instructed the attorneys that evidence of the victim's virginity
prior to the alleged rape should not be introduced unless the victim offered it
herself to show that she did not consent to the kidnapping. In one of his
discussions with the attorneys, in which the jury was excused from the
courtroom, the judge stated that: "It would seem that the Government has a
mountain of rebuttal evidence (details of the rape), but ... I don't see any need at
this time to go into the details of the rape, which is not within the elements of
the kidnapping." R 7-210. In addition, he stated: "I view the question of consent

with respect to the kidnapping charge and the question of the fact of the rape to
be overlapping and whether or not that evidence is to be admitted will be
determined by what is brought up, if anything, by the Defendant." R 7-210.
40

The defendant's brief on appeal indicates that his challenge to Fed.R.Evid.

412(a) is solely based on the testimony regarding the conversation after the first
rape. He is not alleging that there were any other incidents in which rape
evidence was improperly introduced. We thus cannot conclude that the
Government surreptitiously circumnavigated the bounds set by the trial judge
in admitting the evidence of the rape. The trial judge was in the best position to
determine if the Government violated his ruling on the motion in limine.
Throughout the trial, he made no statement indicating that his order had been
violated. The victim's testimony regarding her conversation with the defendant
after the first rape is material to a chronological reconstruction of the evening.
At the time of the proffered testimony, the defense attorney himself did not
contest admission of the evidence. In light of the trial judge's great care to limit
the prejudicial effect of the rape evidence, we find no reversible error.

IV
41

On appeal, the defendant further contends that the evidence presented at trial
was insufficient to convict him for kidnapping, and that his motion for a
judgment of acquittal which was made at the conclusion of the Government's
case, see R 8-343, was erroneously denied. According to the defendant, the
Government failed to prove that the defendant intended to carry the victim
across state lines against her will. The defendant alleges that this is an essential
element of the kidnapping offense. Because the evidence allegedly does not
prove beyond a reasonable doubt that the defendant had such an intent, the
defendant claims his conviction for kidnapping should be reversed.

42

In reviewing a jury verdict which is attacked as insufficiently supported by the

evidence, this Court must view the evidence, and all reasonable inferences
flowing from that evidence, in the light most favorable to the Government. See
Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942);
McBryar, 553 F.2d at 433; United States v. Bankston, 603 F.2d 528, 531 (5th
Cir.1979); United States v. Miller, 693 F.2d 1051, 1053 (11th Cir.1982). We
will uphold that verdict if "a reasonable trier of fact could find that the evidence
establishes guilt beyond a reasonable doubt." Miller, 693 F.2d at 1053 (quoting
United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982)).

43

The defendant mistakenly relies on United States v. McBryar to argue that

under 18 U.S.C. Sec. 1201, the Government must prove his willfulness to carry

the victim across state lines. McBryar only restates the requirements of Sec.
1201 that were set forth in the Former Fifth Circuit's decision5 in Hattaway v.
United States, 399 F.2d 431 (5th Cir.1968). In Hattaway, the Court listed the
required elements under Sec. 1201 as transportation in interstate commerce of
an unconsenting person who is held for some benefit, such acts done knowingly
and willfully. In McBryar itself, the defendant conceded that he crossed state
lines with the victim, but nothing in the opinion indicates that it was shown, or
required to be shown, that he intended to do so. 553 F.2d at 434.
44

The former Fifth Circuit in United States v. Bankston, 603 F.2d 528 (5th
Cir.1979), states that the language of Sec. 1201 "does not require that an
offender know that he is crossing state lines. So long as he 'willfully transports'
his victim and, in doing so, travels in interstate commerce, he need not do so
knowingly." 603 F.2d at 532. The Court in Bankston further noted that the "
'requirement that the offender cross state lines merely furnishes a basis for the
exercise of federal jurisdiction and does not constitute an element of the offense
for kidnapping.' " Id. at 532 (quoting United States v. Napier, 518 F.2d 316,
319 (9th Cir.1975)). Our Court has adopted this interpretation of Sec. 1201. In
United States v. Leichtman, 742 F.2d 598 (11th Cir.1984), we stated:
"Knowledge of crossing state lines is not an essential element of the kidnapping
offense. The requirement that an offender cross state lines merely furnishes a
basis for the exercise of federal jurisdiction." Id. at 603 n. 5.

45

The defendant argues that United States v. McRary, 665 F.2d 674 (5th Cir.),
cert. denied, 456 U.S. 1011, 102 S.Ct. 2306, 73 L.Ed.2d 1307 (1982),
supersedes the decision in Bankston. In McRary, the Fifth Circuit reversed a
kidnapping charge because it found that federal jurisdiction did not exist in that
case. The jurisdictional basis asserted in the indictment and in the jury
instructions was based on the willful transport of the victim in foreign
commerce,6 but the Government only provided proof of another basis of
jurisdiction, "high seas" jurisdiction.7 Because the trial judge refused to give
instructions that jurisdiction could alternatively be based on "high seas"
jurisdiction, the defendant challenged the federal jurisdiction of the district
court. In reversing the conviction, the Court of Appeals rejected the
Government's argument that the basis for federal jurisdiction was not an
element of the offense. The Court stated that "[i]n cases where the issue is
directly addressed it has been uniformly held that the basis for federal
jurisdiction is an essential element of the offense." Id. at 679 (emphasis added).
This reflects the well established principle that federal jurisdiction must be
validly asserted before the federal courts can decide the merits of the contested
claim. The Fifth Circuit in McRary characterized its decision in Bankston as
dicta, and interpreted Bankston as holding "only that the government need not

prove that a defendant knew he crossed state lines." Id. at 679 (emphasis in
original). However, federal jurisdiction was not an issue in Bankston as it was
in McRary.
46

If we interpreted Sec. 1201 to require proof that the defendant knew he was
going to cross state lines, we would be contravening the reasoning behind Sec.
1201. Section Sec. 1201 was enacted to prevent kidnappers from evading
capture by moving from one jurisdiction to another. McRary, 665 F.2d at 674
(citing Chatwin v. United States, 326 U.S. 455, 66 S.Ct. 233, 90 L.Ed. 198
(1946)). The legislative history of Sec. 1201 indicates that the requirement that
the defendant carry the victim across state lines was only used to establish
federal jurisdiction of the crime. As the Senate Report indicates: "[T]he law is
amended to make the thrust of the offense the kidnapping itself rather than the
interstate transporting of the kidnapped person." S.REP. NO. 1105, 92nd
Cong., 2d Sess., reprinted in 1972 U.S.CODE CONG. & ADMIN.NEWS 4316,
4317-18.

47

Because we find that Sec. 1201, does not require a showing that the defendant
intended to cross state lines, we find that the evidence was sufficient to support
his conviction.

V
48

Finally, the defendant alleges that he was prejudiced by the trial judge's
remarks to the jury which complimented the Court Reporter. Specifically, the
defendant objects to the following comment:

49
Consider
for a moment that every word that has been spoken in this Courtroom since
9 o'clock Monday morning has been taken down and is available for transcription
should that be required. Every single word, every phrase, has been made a
permanent record by a very capable Court Reporter and I think that is deserving of
comment from time to time.
50

R 8-370 and 8-371. The defendant claims these comments by the trial judge
served to remind that jury that its decision could be reviewed on appeal.
Ostensibly, this statement absolved the jury of responsibility for its verdict, and
enabled them to render an erroneous decision.

51

United States v. Fiorito, 300 F.2d 424 (7th Cir.1962), which the defendant
relies upon, is not supportive of his stance. In Fiorito, the trial judge explicitly
instructed the jury that the court of appeals and the Supreme Court would
review the judgment. Id. at 426. In that situation, the Seventh Circuit concluded

that "such dilution of the final responsibility of the jury as was thus inferred as
permissible to the jury in its determination of the verdict [was] prejudicial to a
defendant." Id. at 427. The case pending before us does not present such a
problem. The trial judge did not allude to the possibility of review at all, but
merely pointed out that the trial proceedings were being recorded--an
observation which should have been patently obvious to the jury.
VI
52

For all of the foregoing reasons, we affirm the judgment of the district court.

53

AFFIRMED.

The Honorable Jesse E. Eschbach, Senior Circuit Judge of the United States
Court of Appeals for the Seventh Circuit, is sitting by designation

18 U.S.C. Sec. 1201(a)(1) provides:

Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or
carries away and holds for ransom or reward or otherwise any person, except in
the case of a minor by the parent thereof, when:
(1.) the person is willfully transported in interstate or foreign commerce;
shall be punished by imprisonment for any term of years or for life.

It is of no consequence that the trial judge stated that there are two essential
elements in this charge, while stating in the earlier charge that there are three
essential elements. The substance of the essential elements that he enumerated
in both instructions was the same

Fed.R.Evid. 412(a) states: "Notwithstanding any other provision of law, in a

criminal case in which a person is accused of rape or of assault with intent to
commit rape, reputation or opinion evidence of the past sexual behavior of an
alleged victim of such rape or assault is not admissible." Three exceptions to
this rule are enumerated in Fed.R.Evid. 412(b). Reputation or opinion evidence
may be introduced if: the evidence is constitutionally required to be admitted;
the evidence is of past sexual behavior with persons other than the accused,
offered by the accused upon the issue of whether the accused was the source of
the injury; or the evidence is of past sexual behavior with the accused which is
offered by the accused to show whether the alleged victim consented to the
purported rape

The same clerk also testified that she observed that the victim's legs were
trembling when she entered the convenience store with the defendant. R 7-178,
7-181

Decisions of the Former Fifth Circuit rendered prior to October 1, 1981 are
binding on this Court. Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir.1981)
(en banc)

18 U.S.C. Sec. 1201(a)(1) confers jurisdiction when the kidnapping occurs in

"foreign commerce."

18 U.S.C. Sec. 1201(a)(2) provides jurisdiction when kidnapping is perpetrated

"within the special maritime and territorial jurisdiction of the United States."